Nonprofit's fight against Bay Area sewer districts turns nasty

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Baykeeper’s campaign to compel sewer agencies to upgrade their crumbling underground pipes has been remarkably successful. The nonprofit group has pressured Bay Area agencies in Burlingame, Hillsborough, Millbrae, San Carlos, South San Francisco and elsewhere to invest in maintenance at an unprecedented rate.

But its latest target is questioning the group’s tactics, resulting in a bizarre public spat between the agencies.

“To date, no agency that has fallen within its clutches has had the wherewithal to stand up to Baykeeper,” the West Bay Sanitation District stated in a recent ad. “West Bay expects to be the first.”

West Bay serves parts of Atherton, East Palo Alto, Menlo Park, Portola Valley, Redwood City and Woodside. When Baykeeper accused it of Clean Water Act violations for 123 spills between 2004 and 2009, the district rejected its proposed settlement. Fourteen other agencies have settled to avoid litigation.

West Bay attorney Tony Condotti said the settlement would have cost the agency “tens of millions of dollars,” not including Baykeeper’s legal expenses. So West Bay sought to have its day in court.

It also ran an unusual full-page ad in the Daily Post newspaper accusing Baykeeper of exploiting environmental regulations for monetary gain — through attorney’s fees and settlements. The ad alleged that while plaintiffs are not entitled to benefit from Clean Water Act suits, Baykeeper routinely secures huge payouts to the Rose Foundation, an Oakland advocacy group that has awarded Baykeeper at least $350,000 in grants.

Rose Foundation Executive Director Tim Little said the U.S. Department of Justice carefully vets each settlement and “strictly prohibits” the proceeds from going to Baykeeper, although settlements are often tied to Bay restoration.

“If West Bay is trying to say there is some kind of improper relationship, Baykeeper doesn’t seem to be getting a very large percentage of the grants we award,” Little said. The Foundation has given about 2 percent of its grant money to Baykeeper over the past four years.

West Bay officials say the Clean Water Act is “slanted” in favor of plaintiffs such as Baykeeper. Although citizen groups have the right to sue violators and recoup their legal fees, such lawsuits are easy pickings for Baykeeper since spills in an aging sewage system are “inevitable,” West Bay District Manager Phil Scott said.

Lila Tang, chief of the wastewater control division of the San Francisco Bay Regional Water Quality Control Board, said she “sees both sides” of the dispute.

Because her agency lacks the resources to cover all the sewage systems under its jurisdiction, it needs help from groups like Baykeeper. But expectations about spill prevention have expanded rapidly in recent decades, she noted, and the Bay Area’s 17,000 miles of sewage pipe cost about a million dollars per mile to rebuild.

Baykeeper attorney Jason Flanders predicts that the agency will “spend millions of dollars in legal costs fighting over their duty to prevent these sewage spills from getting into the water.”

And the district also faces fines after U.S. District Court Judge Edward Chen slapped it with penalties for 21 of the spills. Other spills are still under consideration.

“We believe our ratepayer money is better spent by putting pipe in the ground and doing maintenance, and that’s why we’re fighting this,” said West Bay District Manager Phil Scott.

Although Scott says the improvements have nothing to do with Baykeeper, last year West Bay began replacing three miles of pipe at a cost of $3 million, and will soon upsize and repair four more miles at a cost of $3.5 million.

Baykeeper says those expenditures are long overdue. It claims that between 2004 and 2009, West Bay underinvested $17.2 million on cleaning and pipe replacement, and another $1.8 million on spill prevention.

Meanwhile, it amassed a $14 million cash surplus, Flanders said.

West Bay’s spills are generally low in volume but high in number said Lila Tang, chief of the wastewater control division of the San Francisco Bay Regional Water Quality Control Board.

But Flanders said the agency has a “troubled legal history.”

In court, Flanders alleged, the district “underreported” the volume of its spills and fought liability on spills that reached local waterways. It also unsuccessfully argued that its watershed was not covered by the Clean Water Act, and that the San Francisco-based Baykeeper had no legal right to sue over spills on the Peninsula.

Flanders said West Bay employees deposed in the suit have exercised their Fifth Amendment right not to incriminate themselves. “It gives rise to an inference that there may have been criminal wrongdoing,” he said.